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Order 30 of the Code is that a firm, though not a legal person, can be sued in the name of the firm. The requirement of all the partners suing the insolvency petition may not arise. However, that defect now does not stand subsisting in view of the fact that in the appeal the other partner has been impleaded. The revision petition is allowed, the impugned order is set aside and the appeal shall stand restored to the file of the learned Prl. District Judge, Nellore. The learned Judge shall hear and decide the appeal on merits and dispose of the same expeditiously. No costs.

Date of Judgment: 1.3.2011

Between:

Kankanwar Govinda Rao and another

…Petitioners

and

Sri Manisha Financeris and another

..Respondents

THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

CRP NO. 3482 OF 2008

ORDER:

Respondents 2 and 3 in IP No. 12 of 1998 (hereinafter referred to as “IP”) had successfully established before the Additional Senior Civil Judge, Nellore that they are bona fide purchasers and the said purchase is not with a view to defeat the creditors of the first respondent in IP. The said IP was dismissed with a finding that the transaction of purchase by the respondents 2 and 3 in IP under two sale deeds dated 2.5.1998, registered on 6.5.1998, are bona fide sales by the first respondent in IP. Since the IP was dismissed, an appeal was filed before the learned Prl. District Judge, Nellore in AS NO. 160 of 2005. The lower appellate Court has set aside the order of Insolvency Court and remitted the IP for fresh consideration. Aggrieved thereby, the respondents 2 and 3 in IP i.e., the purchasers from first respondent in IP, have preferred this revision.

Heard Mr. P. Sridhar Reddy, learned counsel for revision petitioners. Though the first respondent was served by substitute service as per the orders of this Court, nobody appears for him. The second respondent appears through a counsel, but he is the vendor of the revision petitioners and he is sailing and supporting the revision petitioners.

The contention of the learned counsel for the revision petitioners is that the lower appellate Court has set aside the order of the Insolvency Court without there being any proper adjudication and he, in fact, questions the necessity of remanding the matter, when there are clear findings by the Insolvency Court. The said contention appears to be justified in view of the fact that the Insolvency Court under point No.2 had considered the very same question as to whether the petitioners herein are bona fide purchasers for valuable consideration and in paragraphs 15 and 16 of its order the said aspect has been discussed and a finding was reached that the sales are genuine for valuable consideration and the purchasers have, not only paid the consideration, but also made constructions on the petition ‘A’ schedule property. The Insolvency Court also found that there is no collusion between the revision petitioners and the first respondent in IP. However, the lower appellate Court, while considering the appeal, has referred that, “there is no discussion or determination of the issue as to whether the transaction was with an intent to defeat or delay the creditor or body of creditors.” This appears to be totally in correct in view of the findings reached by the Insolvency Court referred to above. Apparently the lower appellate court has remitted the IP for fresh consideration without noticing the findings reached by the Insolvency Court as referred to above. That apart, no ingredients of Order 41, Rules 23, 23-A or 25 of the Code have been attracted in the present case. The impugned order of remand is, therefore, wholly unjustified.

I am also, prima facie, not impressed with the other aspect raised in the matter that the insolvency petition is not maintainable under Order 30, Rule 1 of the Civil Procedure Code (for short “the Code”) and in my view what all the Order 30 of the Code is that a firm, though not a legal person, can be sued in the name of the firm. The requirement of all the partners suing the insolvency petition may not arise. However, that defect now does not stand subsisting in view of the fact that in the appeal the other partner has been impleaded.

The revision petition is allowed, the impugned order is set aside and the appeal shall stand restored to the file of the learned Prl. District Judge, Nellore. The learned Judge shall hear and decide the appeal on merits and dispose of the same expeditiously. No costs.

The Hon’ble Sri Justice B.Chandra Kumar Appeal Suit No.144 of 2012 Dated 9th August, 2012Judgment: The appellant filed this appeal challenging Order, dated27-01-2012, passed by the learned Senior Civil Judge, Darsi, in CFR.No.90 of 2012, refusing to register the suit filed by him on the ground that the same is barred by limitation . The plaintiff filed the suit for specific performance basing on agreement of sale, dated 13-11-2008. As per the terms and conditions of the agreement of sale, the balance amount of Rs.4 lakhs out of the total sale price of Rs.9 lakhs was to be paid within two months from the date of expiry of the limitation of the said agreement of sale. The case of the appellant is that though he had been requesting the respondent to receive the balance sale consideration and register the sale deed in his favour, the respondent did not come forward; that therefore, he got issued a legal notice to the respondent on12-10-2011; that the respondent acknowled…

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable =in VadirajNaggappa Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate (supra), it is held as follows: "17. It is now well settled that the power to recall any witness underOrder 18 Rule 17 CPC can be exercised by the Court either on its own motion oron an application filed by any of the parties to the suit, but as indicatedhereinabove, such power is to be invoked not to fill up the lacunae in theevidence of the witness which has already been recorded but to clear anyambiguity that may have arisen during the course of his examination. Of course,if the evidence on re-examination of a witness has a bearing on the ultimatedecision of the suit, it is always within the discretion of the Trial Court topermit recall of such a witness for re-examination-in-chief with permis…

The 1st respondent herein filed O.S.No.101 of 2011 in the Court of III
Additional District Judge, Tirupati against the appellants and respondents 2 to
5 herein, for the relief of perpetual injunction in respect of the suit schedule
property, a hotel at Srikalahasti, Chittoor District. He pleaded that the land
on which the hotel was constructed was owned by the appellants and respondents 2
and 3, and his wife by name Saroja, and all of them gave the property on lease
to M/s. Swarna Restaurant Private Limited, 4th respondent herein, under a
document …